Multimodality : The International Legal Environment

1. Multimodality:The International Legal Environment A review and the contribution made by the Rotterdam Rules Philippe Delebecque Professor – UniversitéPanthéon-Sorbonne Paris-I

2. Multimodality: a review • Specific features of each mode of transport: sea – air – road – rail – inland waterway . An international convention for each mode Hague-Visby and Hague-Visby Rules/Montréal/CMR/CIM/CMNI . Common characteristics of international conventions: - conventions defining substantive law - mandatory conventions - conventions focussed on liability issues - limits to compensation (e.g. 2 SDR/kg – 666. 67/package) . Dissimilarities - Hague-Visby Rules, and to a lesser extent the CMR, becoming out-dated - Montréal/CIM/CMNI more up to date

3. Review - continued • Linkage between the existing conventions and other modes of transport . Road: CMR Article 2 (convention applies to the whole of the carriage) . Rail: CIM Article 1§3 (convention applies not only to carriage by rail, but also to domestic carriage by other modes if they supplement the carriage by rail) . Inland waterway: equivalent provision (convention may apply to the whole carriage) . Air: multimodal combinations are rare . Sea: only applies to maritime (single-mode) contracts

4. Single mode and multimodal conventions • United Nations Convention on International Multimodal Transport of Goods of 1980 Multimodal convention: provides simplicity and clarity: a true multimodal regime Problems: very closely (perhaps too closely) related to the Hamburg Rules no distinctions made when handling the issue of recourse out of date . National law - National law in France: interests in the forwarding contract (cf. the model freight forwarding contract of 2013, in particular) freight forwarder’s liability extended but it remains within the limits applicable to the carrier/ sub-contractor flexibility: contractual arrangements limits: the model is difficult to export . Practical issues - distinction made between localised damages (‘network system’) and non-localised (existing law or specific law to apply) - UNCTAD-ICC Rules

5. The contribution made by the Rotterdam Rules . Philosophy Pragmatism: no dogma or very little dogma in the background – compromise Evolution in transport technology taken into account: containerisation, logistics and door to door movements .Legal characteristics Convention in substantive law Mandatory convention, but one permitting contractual freedom (Article 80) Convention concerning the contract for international carriage and not just about liability limits to compensation (3 SDR/kg – 875 SDR/package) .Multimodality? A single-mode convention ‘Maritime plus’ The convention applies to contracts in which a carrier undertakes to carry goods from one place to another The contract provides for carriage by sea (international carriage; long or short) and in addition may provide for carriage by other modes (Article 1.1)

6. Conflicts with other conventions • Possible sources of conflict When a single mode convention extends its scope to other modes (or even prevails) That mainly concerns the CMR and the CIM . Resolution of conflicts: elimination of possible sources of conflict Article 82: no provisions in the Rotterdam Rules affect the application of existing international conventions (including any future amendment to such conventions) and in particular: - Montréal - CMR - CIM - CMNI . Example: carriage subject to the CMR International carriage by road: place of taking over of the goods and the place designated for delivery are situated in two different countries, of which at least one is a contracting country Carriage under a single consignment note Where the goods are not unloaded from the vehicle .the carrier does not prove that the loss, damage or delay occurred during the carriage by sea: CMR applies .the carrier proves that the loss, damage or delay occurred during the carriage by sea: CMR does not apply Where the CMR does not apply the Rotterdam Rules do apply under the terms of Article 2 CMR .Another example: carriage subject to the CIM CIM to prevail in a situation where a shipping service has been declared a CIM service under Article 24 COTIF.

7. Other situations in which conflictmight arise • Carriage before or following carriage by sea: Rotterdam Rules assumed to be ‘maritime plus’ that implies an agreement between the parties subject to the conditions set by the Rotterdam Rules. -in the event of loss of or damage to the goods or delay in their delivery, Article 26 of Rotterdam Rules must be considered if the issue of liability arises -If the loss or damage occurs during the carrier’s period of responsibility and before the goods are loaded onto the ship or after their discharge from the ship, the Rotterdam Rules do not apply if: - another international instrument applies to the extent that: .the shipper and the carrier have concluded a contract subject to that instrument, .that the other instrument is mandatory, .and specifically provides for the carrier’s liability, limitation of liability, or time bar for taking action. .It is to be noted that single mode conventions (CMR and CIM) only prevail over the Rotterdam Rules for liability issues, the Rotterdam Rules do not therefore impose their own rules for liability . Article 26 Rotterdam Rules is not particularly original: a limited network liability system

8. Difficulties in applying the Rotterdam Rules • The limited network liability system advantages/disadvantages . ‘Non-localised damages’ regime advantages: Rotterdam Rules applicable disadvantages: limitation in levels of liability . Domestic carriage Contractual carrier: Rotterdam Rules to apply Actual carrier: applicable law to apply Which is the better choice?

9. Other possible difficulties • ‘Maritime plus’ and contractual freedom Door to door and Article 80 Rotterdam Rules: what derogations? . Issue of recourse -Rotterdam Rules: shipper or consignee against the contractual carrier shipper against the maritime performing party -applicable law in the relationship between the shipper and the actual non-maritime carrier -applicable law in the relationship between the contractual carrier and the actual carrier basis of recourse? Based on staff or subrogation? extent of recourse? Partial or total?

10. The benefits of the Rotterdam Rules for modern techniques such as carriage in containers • Modernity restored • Uniformity strengthened • Legal certainty assured balance of interests shippers’ requirements and door to door contracts taken into account contractual freedom (within limits)